High Court Punjab-Haryana High Court

R.S.A. No.728 Of 2007 vs Dalip Singh (Deceased) Through … on 16 December, 2008

Punjab-Haryana High Court
R.S.A. No.728 Of 2007 vs Dalip Singh (Deceased) Through … on 16 December, 2008
R.S.A. No.2409 of 2007                                -1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
                   ****
                            Date of Decision:16.12.2008

1.    R.S.A. No.728 of 2007

      Jaswant Rai
                                                      .....Appellant
            Vs.

      Dalip Singh (deceased) through his legal heirs-cum-
      legal representatives and others
                                                      .....Respondents

2.    R.S.A. No.2409 of 2007


      Jaswant Rai
                                                      .....Appellant
            Vs.

      Punjab Wakf Board, Ambala Cantt. and others
                                                 .....Respondents

CORAM:- HON'BLE MR. JUSTICE HARBANS LAL

Present:-   Mr. Ramesh Goyat, Advocate for the appellant.

            Mr. Abhinash Jain, Advocate for Mr. A.R. Takkar,
            Advocate for respondents No.1 and 2.

            Mr. Ashok Verma, Advocate for proforma respondent.
                         ****
JUDGMENT

HARBANS LAL, J.

This judgment shall dispose of Regular Second Appeal No.728

of 2007 bearing caption Jaswant Rai v. Dalip Singh (deceased) through his

legal heirs cum legal representatives as well as Regular Second Appeal

No.2409 of 2007 titled Jaswant Rai v. Punjab Wakf Board and others as

having arisen out of the same judgment/ decree dated 29.8.2006 passed by

the Court of learned Additional District Judge, Hisar whereby he accepted

Civil Appeal No.24 of 2002 titled Dalip Singh (deceased) through his legal
R.S.A. No.2409 of 2007 -2-

representatives v. Jaswant Rai as well as Civil Appeal No.28 of 2002

bearing caption Punjab Wakf Board, Ambala Cantt. and another v. Jaswant

Rai and others, and dismissed the suit filed by the plaintiff by setting aside

the judgment/ decree dated 29.4.2002 rendered by the Court of learned Civil

Judge (Junior Division), Hisar whereby he decreed the suit for permanent

injunction restraining the defendants- Punjab Wakf Board and others from

interfering in the possession of the plaintiff over the suit land and from

dispossessing the plaintiff forcibly without due process of law.

The brief facts which form the backdrop of the suit are that the

suit land was allotted by defendant No.1 – Punjab Wakf Board, Ambala

Cantt., as well as Administrator, Punjab Wakf Board to the plaintiff in the

year 1983. The plaintiff has been in continuous possession of the same

under these defendants on payment of fixed lagan (rent) since the said year.

The lagan has been paid by him against a valid receipt. He requested many

a times to these defendants to receive the fixed lagan from him for the future

period, but they have totally refused to receive the same. The plaintiff has

already installed a tubewell in his name in the disputed land since 1987 and

he is in cultivating possession of this land. He has incurred huge amount

over the improvement of this land with regards to which the notice was

given to the aforesaid defendants, who have enhanced the lagan from

Rs.1500 to Rs.2500 per year by agreeing that they will not evict the plaintiff

from this land in future. It came to the knowledge of the plaintiff that these

defendants want to dispossess him with the help of his co-defendants by

issuing false receipts to their co-defendants. The plaintiff has also

constructed a pucca room in the land in dispute by spending a huge amount

and has been using the same since 1983. The defendants have got no right
R.S.A. No.2409 of 2007 -3-

to dispossess him from the suit land. They were asked to desist from

interfering with the possession of the plaintiff over the suit land, but all in

vain. On these allegations, the suit has been filed for permanent injunction.

In their joint written statement, defendants No.1 and 2 have inter-alia

pleaded that the plaintiff was lessee only in respect of the land measuring 50

kanal and not 61 kanals as alleged. He paid the lease money on 30.3.1992

for the years 1991-1992, whereafter he did not intend to get the lease

extended and, therefore, vacated the land in dispute and handed over its

vacant possession to the answering defendants, who further leased out this

land to Dalip Singh and Hari Singh at the rate of Rs.8,000/- per annum in

the year 1992-1993, at the rate of Rs.9,000/- per annum in the year 1993-

1994 and Rs.10,000/- per annum in the year 1994-1995 and they are paying

lease money regularly. After Dalip Singh’s death, the disputed land is on

lease with his sons as well as Hari Singh. That the plaintiff is not in

possession of the suit land. As alleged, the permission for installation of the

tubewell was not obtained by the plaintiff. It has been denied that the

development has been made by him in the suit land.

In their joint written statement, defendants No.3 to 6 have inter-

alia pleaded that the plaintiff was lessee under the Punjab Wakf Board, but

the lease deed in his favour was cancelled on 8.11.1988 by the Punjab Wakf

Board, whereafter the disputed land was leased out to Dalip Singh, father of

defendants who have been in possession of the suit land for the last 3 years.

Dalip Singh- deceased had made payment of the lagan upto date whereas

the plaintiff did not make payment of the same. Hence, if any entry in the

revenue record is existing in his name, the same is illegal. He has no

concern with the suit land. The answering defendants have been making the
R.S.A. No.2409 of 2007 -4-

payment of lagan as well as the electricity bill of the tubewell. The

answering defendants have also compensated the plaintiff by making him

payment in respect of the tubewell.

The following issues were framed by the learned trial Court:-

(i) Whether the defendants are liable to be restrained from

interfering in the possession of the plaintiff over the suit

property and also from dispossessing him from the same

forcibly and illegally as alleged in the plaint? OPP

(ii) Whether the suit is not maintainable in the present from?

OPD

(iii) Whether the plaintiff has no locus standi to file the

present suit? OPD

(iv) Whether the suit is time barred? OPD

(v) Whether the suit is bad for want of notice to defendants

No.1 & 2? OPD 1 & 2.

(vi) Whether the plaintiff has not come to the court with

clean hands, if so, its effect? OPD

(vii) Whether the plaintiff has no cause of action to file the

present suit? OPD

(viii) Whether the plaintiff is estopped to file the present suit

by his own act and conduct? OPD

(ix) Relief.

After hearing the learned counsel for the parties and examining

the evidence on record, the learned trial Court decreed the suit in the terms

as noted supra. Feeling aggrieved therewith, Dalip Singh- deceased through

his legal representatives preferred an appeal, which was accepted by the
R.S.A. No.2409 of 2007 -5-

learned Additional District Judge, Hisar setting aside the judgment/ decree

passed by the learned trial Court and dismissed the suit filed by the plaintiff.

Inasmuch as Civil Appeal No.24 of 2002 ibid was preferred by Dalip Singh

– deceased through his legal representatives and another Civil Appeal

No.28 of 2002 was filed by the Punjab Wakf Board, Ambala Cantt., and its

Administrator posing a challenge to the judgment/ decree delivered by the

learned trial Court, so the plaintiff Jaswant Rai has preferred the two

appeals noticed at the outset, feeling aggrieved with the judgment/ decree

dated 29.8.2006 rendered by the learned First Appellate Court, vide which

his suit has been dismissed.

I have heard the learned counsel for the parties, besides

perusing the findings returned by both the Courts below with due care and

circumspection.

Mr. Ramesh Goyal, Advocate on behalf of the common

appellant Jaswant Rai, in both the appeals maintained with great eloquence

that as would transpire from the impugned judgment, the learned First

Appellate Court did not record any reason for reversal of the findings

returned by the learned trial Court. This apart, the learned Lower Appellate

Court ignored the settled principle of law that even a trespasser can be

evicted only in the manner authorised by law. It is admitted case of the

parties that initially the plaintiff/ appellant was allotted the suit land by

defendants No.1 and 2 in the year 1983, whereafter he continued in

possession of the same as lessee on payment of lagan. Ex.P.2, the copy of

jamabandi for the year 1993-1994 tends to show that the plaintiff is in

possession of the disputed land as a lessee. Ex.D4, the copy of khasra

girdawari too fortify this entry existing in Ex.P.2. This documentary
R.S.A. No.2409 of 2007 -6-

evidence go a long way in proving the possession of the plaintiff- appellant

over the land in dispute on the date of institution of the suit, i.e., 20.5.1993.

To add further to it, the defendants have also admitted that there is a

tubewell and kotha (Room) in the suit land. The learned First Appellate

Court has not assigned any cogent reason for reversing the findings returned

by the learned trial Court on the basis of revenue record. The plaintiff-

appellant being in admitted possession of the land in dispute is entitled to

protect it against unlawful dispossession.

To tide over these submissions, Mr. Ashok Verma, Advocate

representing the legal heirs-cum-legal representatives of the deceased Dalip

Singh- defendant- respondent urged with great vehemence that as a matter

of fact, the appellant had vacated the land in dispute and subsequently, it

was leased out to Dalip Singh deceased and that being so, the legal heirs of

the deceased Dalip Singh cannot be injuncted from cultivating the land.

Mr. Abhinash Jain, Advocate arguing on behalf of the Punjab

Wakf Board, Ambala Cantt., as well as its Administrator- respondents

pressed into service that in consequence of vacation of the suit land by the

plaintiff- appellant, it was leased out in favour of Dalip Singh since

deceased and that the legal heirs-cum-legal representatives of the deceased

Dalip Singh had been making the payment of lease money regularly.

I have given a deep and thoughtful consideration to the rival

contentions. The learned First Appellate Court in paragraph No.19 of the

impugned judgment has observed as under:-

“The learned trial court held the plaintiff to be a lessee on land

measuring 60 kanals, though the plaintiff himself admitted in

his replication that he was lessee qua 50 kanals of land only.
R.S.A. No.2409 of 2007 -7-

Tubewell, which the plaintiff claims to have been installed in

the land in question, was not in use as deposed to by PW-2 Des

Raj, UDC, HPVN Adampur and the electric connection was

disconnected on 17.9.1996 as consumer Jaswant son of Ram

Narain had become defaulter. Lessees Dalip etc. are paying

lagan money to the Punjab Wakf Board. The observations of

the learned trial court that relationship of lessee and lessor

existed between the parties as the plaintiff was ready and

willing to pay the lease money. Relationship of lessee and

lessor cannot be created by willingness of a person to pay lease

money. For creation of lease, there has to be bilateral

agreement between the parties.”

In the first instance, it is to be noticed, as to whether the learned

First Appellate Court was right in observing that the learned trial Court held

the plaintiff to be a lessee of land measuring 61 kanals though the plaintiff

admitted himself in his replication that he is lessee qua 50 kanals of land

only. To my mind, its answer must be in the negative for the reason that a

glance through the plaint would reveal that as a matter of fact, the suit has

been filed qua the land measuring 60 kanal and 1 marla. By way of

inadvertence or due to typographical mistake in the replication, the land has

been shown as 50 kanals. Indeed, the plaint is the basic document of the

pleadings. That being so, no serious note can be taken of the fact that in the

replication, the plaintiff has alleged himself to be a lessee qua the land

measuring 50 kanals. Further, the learned First Appellate Court observed

that the tubewell being not in use, its connection was disconnected as the

plaintiff had become defaulter. It is own case of the legal heirs-cum-legal
R.S.A. No.2409 of 2007 -8-

representatives of the deceased Dalip Singh, i.e., defendants No.3 to 6 that

they have compensated the plaintiff by making him payment in respect of

tubewell. This admission is clincher towards the fact that the tubewell in

the disputed land was installed by the plaintiff- appellant. It is a separate

matter that connection thereof has been disconnected in consequence of

non-payment of the electricity charges pertaining to this tubewell. Mere

disconnection of tubewell does not confer any right on defendants No.3 to

6. It is further observed by the learned First Appellate Court that Dalip

Singh, etc., are paying lagan to the Punjab Wakf Board. It is apt to be borne

in mind that defendants No.3 to 6 have come up with a specific plea that this

lease deed in favour of the plaintiff was cancelled on 8.11.1988 by the

Punjab Wakf Board and, thereafter, the land in dispute was leased out to

Dalip Singh- deceased. The record is quite barren to show such cancellation

of the lease deed. In the absence of such record, it would be just begging

the question to say that such lease deed has been cancelled. All the

defendants have admitted in their written statements in categoric terms that

initially the land in dispute was leased out in favour of the plaintiff-

appellant. The defendants No.3 to 6 could have been inducted as lessee in

the land in dispute only in the event the plaintiff- appellant had either

surrendered the lease or vacated the land in dispute. The defendants No.1

and 2 have come up with the plea that the plaintiff did not want to get the

lease extended and thus, he vacated the land in dispute and handed over its

vacant possession to them, whereas their co-defendants have put forth a

different plea that the lease deed in favour of the plaintiff was cancelled.

Ostensibly, they have taken up inconsistent pleas. Had the lease deed been

cancelled, the defendants No.1 and 2 might have taken up such plea. As per
R.S.A. No.2409 of 2007 -9-

Ex.D.4, from kharif 1997, the defendants No.3 to 6 came in possession of

the suit land vide Rapat Roznamcha No.105 dated 27.11.1997. As has been

reflected in Ex.D.5 as well as Ex.D.6, they have been continuing in

possession of the suit land. The defendant Rajpal had moved an application

for correction of entries in the khasra girdawari in the Court of Assistant

Collector-II Grade, Hisar, which was allowed vide order dated 12.11.1997,

which was given effect to vide above-mentioned Rapat Roznamcha on the

basis of which defendants No.3 to 6 have been shown in the cultivating

possession of the suit land from kharif 1997 onwards. The said order was

challenged by the plaintiff in the Court of Collector Hisar who set aside the

same vide his order dated 22.9.2000 Ex.P.8. The learned trial Court rightly

proceeded to observe that “Once order dated 12.11.1997 was set aside by

Collector Hisar vide Ex.P.8, the entries in Ex.D.4, Ex.D.5 and Ex.D.6 in

favour of defendants No.3 to 6 by virtue of Rapat Roznamcha No.105 dated

27.11.1997 lost their relevance.” It is further observed that “it is also worth

mentioning here that earlier also a similar application was moved by

defendants No.3 to 6 in the Court of Assistant Collector-II, Hisar for

correction of khasra girdawari, which was dismissed vide order dated

4.6.1997 Ex.P.9. In the said order, it was specifically observed by Assistant

Collector-II Grade, Hisar that defendants No.3 to 6 and defendants No.1 and

2 are in connivance with the each other and in fact, the plaintiff has been in

possession of the suit land as a lessee.” It has also been rightly observed by

the learned trial Court that “Ex.D.7 has not been passed in terms of para 9.9

of Punjab Land Records Manual as per which it was incumbent upon the

concerned revenue authorities to inform the affected person before effecting

any change in revenue entries.”

R.S.A. No.2409 of 2007 -10-

As would be apparent from Ex.D.7, the notice for spot

inspection was issued to the plaintiff who did not come present at the site.

The spot inspection was undertaken at his back on 18.6.2001. Thus, by no

stretch of imagination, it can be said that paragraph No.9.9 ibid was

observed before effecting change in the entries in the revenue record. DW1

Mohammad Baksh in his cross-examination has stated that entry regarding

plaintiff Jaswant Rai giving up his possession of the suit land is mentioned

in the record of Wakf Board of 1992-1993. He stated that such record is

lying in the head office and the same can be produced by Record Officer.

As emanates from the record, no such effort was made by the defendants to

summon such record from the Record Officer. There being no evidence

with regards to the surrendering of the possession of the land in dispute by

the plaintiff- appellant of his own, it is very difficult to accept such plea

taken up by defendants No.1 and 2.

In consequence of the afore-referred discussion, the findings

returned by the learned First Appellate Court are reversed and both these

appeals are accepted setting aside the judgment/ decree dated 29.8.2006

rendered by the Court of learned Additional District Judge, Hisar and the

judgment/ decree dated 29.4.2002 passed by the Court of learned Civil

Judge (Junior Division), Hisar is restored. Of course, having regard to the

peculiarity of the facts and circumstances of the case, the parties are

directed to bear their own costs.

December 16, 2008                                 ( HARBANS LAL )
renu                                                   JUDGE

Whether to be referred to the Reporter? Yes